U.S. v. Loughner: Parsing A Plea Deal For Alleged Tucson Shooter

By Andrew Cohen

It's certainly conceivable, as The Los Angeles Times' Rick Serrano first reported, that Jared Loughner, the alleged Tucson shooter, will change his plea to "guilty" at a status conference Tuesday in federal court in Phoenix. But an awful lot can happen between now and then-- an awful lot can happen in the span of an hour for a schizophrenic who has to be treated with psychotropic medicine-- so it's wise to take Saturday evening's scoop with a dose of caution. In the meantime, here are six quick legal points to keep in mind:

Competency, Times Two.U.S. District Judge Larry A. Burns will have a tough job Tuesday. He will be asked, essentially, to twice find Loughner competent. First, as Serrano reported, the judge will have to evaluate whether the court-appointed doctor has accurately assessed Loughner as mentally competent enough now to understand the nature of the proceedings against him. Next, Judge Burns will have to engage with Loughner in a plea colloquy to determine whether he understands the ramifications of his guilty plea. The Terms of the Deal. Will Loughner be able to convince the judge on Tuesday that he's sane enough to plead guilty? Will prosecutors formally recommend that he be given a life sentence without the possibility of parole? Will Judge Burns, assuming he finds Loughner competent, accept such a sentencing recommendation? This is a little different from the case of the Unabomber, Theodore Kaczynski, who also pleaded guilty in federal court to capital charges. In that case, on the eve of trial, the feds had already announced they intended to seek the death penalty. Here, they have not.

Jurisdiction. If Loughner pleads guilty to the federal charges against him, he will still face the possibility of state murder charges-- and the death penalty-- in Arizona. Today, there is little reason to think that local prosecutors won't go ahead and try Loughner, even though his mental illness will dog any capital case. Why would Arizona spend the time and money to prosecute a man who already is going to spend the rest of his life in prison? I don't know. Ask the folks in Oklahoma, the ones who prosecuted Terry Nichols after a federal jury convicted him in Denver in 1998. Why the feds would make the deal. For the feds, a plea deal like this makes perfect sense. It's neat. It's tidy. It's cheap. And it precludes the possibility of endless appeals and medical evaluations. It's acknowledgement, in other words, that Loughner's mental illness is an inextricable part of this case and an obvious "mitigating factor" against the imposition of the death penalty. Don't forget, the United States Supreme Court has long prohibited the execution of the mentally ill and Justice Anthony Kennedy, in particular, has been a pronounced opponent of the practice.Why Loughner would make the deal. The myth has it that defense attorneys approach cases like this looking for a loophole. This is a libel, especially against attorneys as devoted as Judy Clarke, who leads the Loughner defense. This case is not a Whodunnit. It's not a mystery. There is no chance in any event that Jared Loughner is going to walk the streets again. The only live legal issue is Loughner's mental state. By making the deal, Loughner eliminates the federal threat of execution and puts subtle pressure on Arizona to let him be-- to allow him to remain forever in federal custody.

The leak. I find it fascinating that news of the deal would leak out the way it did, late on a Saturday night. Did federal prosecutors leak it to Serrano to put pressure on the Loughner defense to go through with the deal? Did defense attorneys leak it to put pressure on federal lawyers to go through with the deal? Did Arizona officials leak it as an expression of their distaste for the deal? We may never know the answers to these questions. But the fact that they are worth asking tells me that this reported deal, if it exists at all, is a rather shaky one. Tuesday's hearing ought to be quite a show.